R v Hellyer

[2001] NSWCCA 384

CITATION:	R v Hellyer [2001] NSWCCA 384
FILE NUMBER(S):	CCA 60694/00
HEARING DATE(S):	10/8/2001
JUDGMENT DATE:	10 August 2001
PARTIES :	Regina Dennis Hellyer
JUDGMENT OF:	Dowd J at 1; Smart AJ at 19

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	00/21/2094
LOWER COURT JUDICIAL OFFICER :	Sides DCJ

COUNSEL :	Applicant in Person Mr MC Grogan- Crown
SOLICITORS:	Mr SE O'Connor- Crown
CATCHWORDS:	Appeal against severity of sentence - Aggravated break and enter with intent - Entering guilty plea at earliest opportunity - Concurrent sentences
LEGISLATION CITED:	Crimes Act 1900 Justices Act 1902
DECISION:	1. Leave to appeal granted; and 2. Appeal dismissed.

IN THE COURT OF
CRIMINAL APPEAL

60694/00

DOWD J
SMART AJ

Regina v Dennis HELLYER

JUDGMENT

1    DOWD J

: The Court is in a position to give judgment.

2 The applicant has sought leave to appeal against sentences imposed by His Honour Judge Sides DCJ, at the Campbelltown District Court on 11 October 2000. The applicant entered a plea of guilty to two charges of aggravated break and enter with intent contrary to s112(2) Crimes Act 1900 (‘the Act’). The maximum penalty under that section is twenty years imprisonment.

3 On the first count which occurred on 23 March 2000, the applicant was charged with aggravated break and enter with intent and maliciously inflict actual bodily harm contrary to s112(2) of the Act. He entered a plea of guilty, and pursuant to s51A of the Justices Act 1902, Sides DCJ imposed a sentence of three years imprisonment, to commence on 28 March 2000 with a non-parole period fixed for a period of two years to conclude on 27 March 2002.

4 On the second count, the offence for which occurred on 28 March 2000, the applicant was charged with aggravated break and enter with intent whilst armed with an offensive weapon, namely, a large kitchen knife, under s112(2) of the Act.

5 The applicant entered a plea of guilty and, pursuant to s51A of the Justices Act 1902, he adhered to his plea before His Honour Sides DCJ, who imposed a sentence of four years cumulative upon the non-parole period, fixed for count 1; that is, to commence on 28 March 2002 and fixed a non-parole period of two years to conclude on 27 March 2004.

6    On the first count, the facts were that on 23 March 2000, the applicant entered the home of the victim, a seventy-one-year old widow living alone. The applicant and the co-offender tied up the woman and gagged her mouth. The applicant and the co-offender subsequently left the premises, having taken cash and rings which had been forcibly removed from the woman's hand. The victim eventually released the bonds, sought help and gave a statement to the police.

7    The second offence took place on 28 March 2000, when the applicant and his co-accused entered the home without the consent of the other victims, a seventy-two-year-old male victim and his sixty-eight-year-old wife. Both the applicant and his co-offender were armed with knives. The offenders forced their way into the house, manhandled the male victim and forced him into the bedroom. During the offence, the victim was threatened with a knife and it was pushed up against his back. The victim's wife awoke during the commotion and escaped to alert the police. The applicant was arrested but escaped later that night. The offenders stole cash and jewellery from the victims during these events.

8    The applicant has submitted a letter dated 9 July 2001, which has been submitted to this Court in evidence. The applicant told the Court of the circumstances in which he is held in protection, primarily because, on his evidence, he has attempted to harm himself, and thus cannot be left on his own. The applicant also told the Court that he wished to be with his two daughters. He has a very sad history in that his step-brother has killed himself in custody in Grafton prison, and the mother of his two children has died as a result of an overdose.

9    The grounds of appeal, as set out in his application for leave to appeal, are that he was given a cumulative sentence and that he had pleaded guilty at the first available opportunity, and the fact that being a protected prisoner was not taken into account. His Honour Judge Sides DCJ, in a carefully expressed Remarks on Sentence, took into account the pleas of guilty, both on a utilitarian basis and as an indication of contrition.

10 His Honour took into account that they were entered into at the Local Court and a hand up brief was prepared pursuant to s51A of the Justices Act, and His Honour granted the maximum normally granted under the system, which is a twenty-five per cent discount. His Honour also took into account that without the admissions made in the plea of guilty, that a prosecution case would otherwise not have been a strong one.

11    However, notwithstanding the indication of contrition of the plea of guilty, His Honour found that there was not a case where the applicant had shown a great deal of contrition. His regret arises, His Honour found, from the position he found himself in as very genuine feelings of remorse.

12    His Honour set out in some detail the very horrifying circumstance that the elderly widow found herself in, and also the very serious events surrounding the home invasion of the seventy-two-year-old man and his sixty-eight-year-old wife. His Honour took into account the serious background to which the applicant had been subjected, and the way in which he found out that he was adopted.

13    The applicant commenced drug abuse and offending and has had a period of treatment. He has participated in the methadone program. His drug addiction has caused him to seek help by way of anti-psychotic drugs. He has, in fact, felt depressed and paranoid.

14    The applicant met his natural mother when aged about fourteen, but was unable to form a meaningful relationship with her.

15    The applicant was released from custody in November 1999 and did not return to custody until his arrest on 28 March 2000. He had, through a tax refund, a large amount of money which caused him to abuse his addiction.

16    The applicant has had a long history, mainly of Children's Court offences. His Honour found that nothing but a full-time sentence was appropriate, and that they were serious offences. His Honour examined the Court of Criminal Appeal cases. In setting aside the sentences, His Honour, by backdating the sentences, subsumed a sentence that had been imposed on 10 July 2000 of a minimum term of nine months, and an additional term of three months and, in backdating the sentence to 28 March 2000, has granted some benefit, it now being some seventeen months since the applicant has been in custody, since he returned in March 2000.

17    The applicant has referred the Court to a number of cases where sentences were served concurrently. The Court has the power, and indeed His Honour had the power, to take into account questions of totality, which His Honour addressed. His Honour who, in my view, taking into account the very serious events involving elderly, vulnerable people who are not likely to forget the terror in which they must have been placed by these events, has imposed a sentence which is in the serious nature of these offences, as low a sentence as can properly be imposed, taking into account the matters before His Honour.

18    The Court is extremely sympathetic to the circumstances in which the applicant has since found himself by the death of his step-brother and the mother of his children, and the difficulty he has in seeing those children. Nonetheless, this Court has an obligation in examining an application for leave to appeal and on appeal, to look at the sentence that was imposed by the sentencing judge. I can find no appealable error in His Honour's judgment. Therefore, I consider that, although I would grant leave to appeal, the appeal should be dismissed.

19    SMART AJ: I agree. I would just add one matter. The applicant complained that the fact he was a protection inmate was not taken into account. In fact His Honour Judge Sides DCJ records that it had been necessary for the applicant to be placed on protection, and held that the applicant was on protection because he was stood over.

20    Mr Hellyer stated that other prisoners did not like what he had done and that was the reason for the problem.

21    DOWD J: Yes, I agree with Smart AJ's remarks.

22    The order of the Court will be that:

(a) Leave to appeal is granted; and
(b) Appeal dismissed.

oOo